Politics and Lobbying Influence EPA Rules on Coal Ash Wastewater

Last week, the independent investigative news site ProPublica released a major new investigative report on the most powerful government office you’ve probably never heard of: the White House Office of Management and Budget’s Office of Information and Regulatory Affairs, known as “OIRA” for short. That bureaucratic nightmare of a name is indicative of the influence this obscure office holds.

Over the last several decades, successive presidents from both political parties have given OIRA increasingly sweeping powers to decide the content of rules to protect public and environmental health issued by federal agencies—and in some cases, to decide whether any rules are issued at all.

There is no better example of this than the role that OIRA played last year in rewriting EPA’s proposed rule governing discharges of toxic coal ash wastewater from power plants. OIRA took the highly unusual and improper step of writing new, weaker options into the draft rule that had been prepared by EPA’s expert staff and forcing the EPA to choose those OIRA-written options as its “preferred” options in the proposed rule.

Earthjustice and our allies are fighting in court to seek access under the Freedom of Information Act to documents showing OIRA’s role in weakening EPA’s proposed coal ash wastewater rule. Our case directly challenges OIRA’s claim that it should be allowed to rewrite rules in secret, with no transparency or accountability.

As the ProPublica article documents in occasionally infuriating detail, OIRA operates almost entirely in secret, refusing even to disclose the names and credentials of its staff who are charged with rewriting federal rules. And with the political power of the White House behind it, OIRA’s influence on the process allows raw politics (and corporate lobbying) to trump scientific evidence demonstrating that rules are needed and would benefit the public. Journalist Heather Rogers wrote:

"John Morrall, deputy administrator of OIRA for almost 30 years until 2008, said that in high-stakes regulations, political and economic factors consistently play a role and may help account for the softening of many regulations. 'Maybe on a one-by-one basis the science and cost-benefit analysis say you should regulate certain things,' he said. But if OIRA approved all the scientifically valid rules agencies write, 'it could destroy that sector and that could generate too much political opposition … In particular states and congressional districts, that could be bad in an election.'"

Because OIRA is the last stop before rules are proposed or finalized, powerful industry groups have come to see OIRA review as an opportunity to delay, weaken, or block public health protections that would impose costs on polluters.

The office also recast the EPA's scientific findings. The agency initially stated that using ponds for storing the most toxic form of coal ash, the emissions captured in the smoke stack's final filter, did "not represent the best available technology for controlling pollutants in almost all circumstances." Revisions made during OIRA review recommended eliminating this conclusion, giving no explanation why. Other changes included softening data, such as reducing coal-fired power plants' share of toxic pollutants discharged to surface water from "at least 60 percent" to "50–60 percent." The post-OIRA version also recommended reducing the projected benefits of the EPA's higher standards, which the agency did.

The EPA reached its findings for handling coal ash after almost 10 years of extensive data collection, modeling and analysis. This work required the knowledge of biologists, chemists, engineers and toxicologists working on a team that varied in size from about eight to around 30 people at various phases. The EPA lists the staff in its Office of Water responsible for the rule in the document itself, on the agency's website and in press releases.

It is difficult to know the qualifications of the people at OIRA who rewrote the EPA's draft rule. The only credentials disclosed by its website are those of the current administrator, Howard Shelanksi, who has a Ph.D. in economics, and his deputy, Andrei Greenawalt, a lawyer who was a policy adviser to the chief of staff from 2011 to 2013. ProPublica's request to the OMB for a list of OIRA staff went unanswered, as did repeated requests for an interview with Shelanski. OIRA also failed to respond to written questions about its lack of transparency.

OIRA’s abuse of the rulemaking process here was extreme, but there is still an opportunity for the White House to make this right. As a result of litigation against EPA brought by Earthjustice and our allies, EPA is under a court order to finalize the coal ash wastewater rule by September 2015. Since the proposed rule was issued, we now have a new head of OIRA, a new director of the White House Office of Management and Budget, a new EPA Administrator, and a President with a newly-revived commitment to making the cleaning up of America’s electricity sector a part of his legacy.

The EPA has not revised its rules limiting power plant water pollution since 1982. Coal-fired power plants are the largest discharger of toxic water pollution in the U.S., dumping over 5 billion pounds of mercury, arsenic, lead and selenium into our waters each year. Wastewater treatment technologies that drastically reduce, and even eliminate, discharges of toxic pollution are cost-effective and widely available, and are already in use at some U.S. power plants.

The Obama Administration has the opportunity to correct OIRA’s undue influence and take the long-overdue step of addressing this major threat to public health and the environment by issuing a strong coal ash wastewater rule.

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